Yang Li
[2024] FWC 3076
•6 NOVEMBER 2024
| [2024] FWC 3076 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Yang Li
(AB2024/645)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 6 NOVEMBER 2024 |
Application for an FWC order to stop bullying at work
On 26 August 2024 Mr Yang Li applied for an order to stop bullying at work pursuant to s 789FC of the Fair Work Act 2009 (Cth) (Act). The application was made in relation to GI Computer Innovations, and a person with whom Mr Li interacted while at work (the person named).
On 15 October 2024 the respondent informed my chambers that Mr Li’s employment with it ceased on 4 October 2024.
On 15 October 2024 my chambers sent correspondence to the parties that advised that I had formed the preliminary view that no stop bullying order could be made in circumstances where there is no ongoing employment relationship and therefore no apparent risk of future bullying at work. The parties were given an opportunity to provide responsive submissions to the question of whether Mr Li’s application should be dismissed pursuant to s 587 of the Act, as it appeared to have no reasonable prospect of success.
On 21 October 2024 Mr Li filed submissions in which he says that his dismissal is a ‘tactic’ of the respondent to resolve the workplace bullying case against it. He further says that he has lodged a general protections application involving dismissal, pursuant to s 365 of the Act. He says that any dismissal of his stop bullying application should be postponed pending an opportunity for him to have a ‘thorough discussion’ with his legal representative during a conference in the general protections application.
On 23 October 2024 the respondent filed submissions in which it says that Mr Li’s employment has been terminated, and this is not in dispute between the parties. Accordingly, it says that I should exercise my discretion to dismiss Mr Li’s application as it has no reasonable prospects of success in circumstances where there is no risk of future bullying at work. It further says that Mr Li does not seek reinstatement as an outcome of his general protections application.
Consideration
Section 789FF of the Act sets out when the Commission may make an order to stop bullying. It relevantly provides that the Commission must be satisfied both that (a) the worker has been bullied at work, and (b) there is a risk that the worker will continue to be bullied at work.
It is not in dispute that the employment relationship between the parties has ceased. In such circumstances, I cannot be satisfied of the matter at (b) above, that there is a risk that Mr Li will continue to be bullied at work. Accordingly, the Commission is not empowered to make an order to stop bullying. It follows that I am satisfied that the application has no reasonable prospects of success.[1]
Section 587 of the Act provides the Commission with the power to dismiss an application on its own initiative or upon application. It relevantly provides as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
….
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The power to dismiss an application pursuant to s 587 of the Act is discretionary and should be exercised with caution. In deciding whether to exercise the discretion, I have considered Mr Li’s submission that he has made a made a general protections claim involving dismissal, pursuant to s 365 of the Act, and that any dismissal of the application before me should be postponed to allow him to have a ‘thorough discussion’ with his legal representative during any conference listed in the s 365 application.
I make no findings as to the prospects of Mr Li’s s 365 application, and it is not before me for consideration. However, I observe that reinstatement is not the primary remedy to be considered in relation to a general protections claim, and indeed, reinstatement is not sought by Mr Li.[2] It follows that should Mr Li’s general protections application succeed, there is no statutory imperative that reinstatement first be regarded as inappropriate before any consideration is given to the appropriateness of compensation as a remedy.[3]
Further, should a certificate by issued by Commission pursuant to s 368(3) of the Act, Mr Li’s general protections application will proceed before the courts.[4] The outcome of such an application may take some time. I do not consider that it is appropriate that Mr Li’s application for an order to stop bullying be held in abeyance for a lengthy and uncertain period while his general protections claim is resolved in a different jurisdiction.
I have afforded the following matters considerable weight in considering whether to exercise my discretion to dismiss the application. First, having regard to my conclusion at [7] of this decision, Mr Li’s application for a stop bullying order has no reasonable prospects of success at this point in time, where he is no longer an employee of the respondent and there is no future risk of bullying at work by an individual identified in his application. Second, I observe that should Mr Li be reinstated or otherwise re-employed by the respondent, he is at liberty to make a further application under s 789FC of the Act, in which he can rely upon the circumstances contained in the present application. In my view, this significantly ameliorates any potential prejudice occasioned by the dismissal of the application.
For these reasons, I consider that it is appropriate to exercise my discretion to dismiss Mr Li’s application pursuant to s 587(1)(c) of the Act.
Order and disposition
Mr Li’s application for an order to stop bullying is dismissed.
DEPUTY PRESIDENT
[1] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines[2014] FWC 3408
[2] Respondent’s submissions, 23 October 2024
[3] In the context of unfair dismissal applications, see Fair Work Act 2009 (Cth), s 390(3)
[4] Subject to any consent arbitration in the Commission pursuant the Fair Work Act 2009 (Cth), s 369
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